Press "Enter" to skip to content

Federal Judge Rules South Dakota Gay-Marriage Ban Unconstitutional

Federal Judge Karen Schreier has ruled South Dakota's gay marriage ban unconstitutional. In a ruling issued today, Judge Schreier finds in favor of Jennie and Nancy Rosenbrahn and five other South Dakota same-sex couples who sued the state for legal recognition of their marriages.

Don't throw all your rice yet: in her brief order, Judge Schreier stays her order pending appeal, "[b]ecause this case presents substantial and novel legal questions, and because there is a substantial public interest in uniformity and stability of the law...."

Stay tuned—I'm reading and seeking details!

Update 15:10 CST: I'm reading the ruling now. Apparently Attorney General Marty Jackley threw a lot of spaghetti at the wall, and none of it stuck. Among the noodles was an argument that the federal court has no jurisdiction over domestic relations. The state cited a ruling that found federal courts cannot issue divorce, alimony, or child custody decrees. Judge Schreier said that's irrelevant: Rosenbrahn et al. are asking the court to rule on a Constitutional question, not issue a divorce, order alimony, or decide child custody [See Schreier ruling, pp. 7–8].

15:13: The AG's office went Sibby and tried to turn the Tenth Amendment into an absolute ban on federal rulings on marriage issues. Judge Schreier said no, state laws on marriage are still subject to the rest of the Constitution [p. 9].

15:20: Citing Loving v. Virginia (1967), Judge Schreier says on page 10, "Marriage is a fundamental right." Permit me to emphasize the period. Judge Schreier rejects the state's argument that this fundamental right continges upon "the categorization of the individual attempting to exercise that right" [p. 12]. Her Honor finds that the preponderance of Supreme Court rulings on marriage "demonstrate that the right to marriage is not broken down into sub-rights depending on the individual attempting to exercise that right" [p. 13].

15:27: Oh, this paragraph's a beauty:

The right to marriage is related to other constitutionally protected rights, such as the right to privacy. See Zablocki, 434 U.S. at 384 (citing Griswold v. Connecticut, 381 U.S. 479, 486 (1965)). Personal choices about marriage and other intimate decisions are “central to personal dignity and autonomy” protected by the Fourteenth Amendment. Planned Parenthood of Se. Pa., 505 U.S. at 851. The right to marriage also encompasses an associational right “ ‘of basic importance in our society’ [which is] sheltered by the Fourteenth Amendment against the State’s unwarranted usurpation, disregard, or disrespect.” M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996) (quoting Boddie v. Connecticut, 401 U.S. 371, 376 (1971)). The right to make individual moral and sexual choices, particularly with respect to sexual orientation, also enjoys constitutional protection. See Windsor, 133 S. Ct. at 2694 (citing Lawrence, 539 U.S. 558). The fact that marriage is intertwined with other fundamental constitutional rights is consistent with the broad interpretation the Supreme Court has given to the right to marriage [Judge Karen Schreier, ruling in Rosenbrahn et al. v. Daugaard et al., 2015.01.12, p. 13].

Your choice to get married (or not!) is fundamental to your dignity and autonomy. The 14th Amendment says the state doesn't get to mess with your dignity and autonomy.

That point and the above point about marriage as a fundamental right are important, because Judge Schreier uses them to dismiss the state's public policy argument that the court should leave this issue in the realm of public debate. She cites Supreme Court Robert H. Jackson in his famous pronouncement on the purpose of the Bill of Rights:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections [Justice Robert H. Jackson, West Virginia State Board of Education v. Barnette, 319 U.S. 624, 1943].

In other words, 51.83% of us don't get to go to the polls and deny a minority a fundamental Constitutional right, be it speech, assembly, due process, or marriage.

15:43: Judge Schreier also dismisses the state's "tradition" defense, saying tradition does not insulate law from constitutional challenge. She footnotes this warning about letting tradition set your definitions:

If traditional definitions of marriage were unassailable, marriage would look much different than it does today. “[W]ithin the past century, married women had no right to own property, enter into contracts, retain wages, make decisions about children, or pursue rape allegations against their husbands” [Schreier, p. 17, citing Kitchen v. Herbert (2014)].

15:48: And for those of you shouting, "Dogs and cats living together!" stop. Judge Schreier says her ruling is no slide down the slope to polygamy, incest, and other nasties. Judge Schreier says the court has legalized interracial marriage and same-sex intimate conduct while letting stand prohibitions on polygamy and incest [pp. 19–20].

16:31: South Dakota contended the state has a compelling interest in "channeling procreation into marriage" and "proceeding with caution." The state failed to demonstrate to Judge Schreier how banning same-sex marriage serves either interest.

On procreation, the state failed to explain why it would ban same-sex marriages but not opposite-sex marriage between people who either cannot or do not have kids. Nor did the state prove that children are worse off with two moms or two dads instead of a mom and a dad [pp. 22–23].

On "caution," the state claimed to be worried that allowing same-sex marriage would 'fundamentally alter a basic societal structure" and hit the state budget by giving a whole new group of people state marriage benefits. That caution argument implies that the state is taking a wait-and-see attitude. Judge Schreier dismissed that argument, saying the state offered no reason that its "caution" ought to require citizens to wait for fundamental Constitutional rights. Judge Schreier also said the same-sex marriage ban was written as a Constitutional amendment, not a temporary statute with a sunset clause, indicating the state was not interested in "proceeding" with or without caution.

16:48: Attorney General Marty Jackley issues a muted press release stating that “It remains the State’s position that the institution of marriage should be defined by the voters of South Dakota and not the federal courts." The AG offers no new or original commentary on the ruling itself and only recycles the odd historical line he has included in past releases noting that our same-sex-marriage ban affirms a Dakota Territory law... which I think Judge Schreier would say is also unconstitutional.

18:16: The South Dakota Democratic Party gives a darn. SDDP chair Ann Tornberg issues this statement:

"The moral arc of the universe is long but it tends towards justice." How true Martin Luther King Jr's words ring true today. Because the SD Attorney General's motion to dismiss was rejected by the US District Court, we are now able to move forward and proceed with a ruling on the case itself. Discrimination has no place in South Dakota law. As we celebrate this success today, the South Dakota Democratic Party reaffirms its commitment to extend equal rights and protections for all South Dakotans [Ann Tornberg, SDDP press release, 2015.01.12].


  1. Bill Fleming 2015.01.12

    Not sure I understand what the "stay" means (in practical, actionable terms) Cory.

    For example, does it mean that Hickey can't do gay weddings, or that Sibby doesn't have to recognize them if he does. ;-)

    But seriously folks, how does that work with the churches? Are they still allowed to refuse to marry gay couples, even after the "stay" is no longer in place?

    i.e. How are churches who oppose SSM in other states dealing with this?

  2. mike from iowa 2015.01.12

    Cory,you're rooting against this judge because she is a woman.

  3. Jeff Barth 2015.01.12

    Judge Schreier clearly understands The Constitution. Thank you Judge Schreier.

  4. Roger Cornelius 2015.01.12

    Does this mean Sibson and Hickey can now marry their dogs?

  5. Steve Sibson 2015.01.12

    "The AG's office went Sibby and tried to turn the Tenth Amendment into an absolute ban on federal rulings on marriage issues. Judge Schreier said no, state laws on marriage are still subject to the rest of the Constitution "

    Like I have been saying, the original Constitution, which includes the Tenth Amendment, has been destroyed by the Fourteenth. But then the court refuses to use the Fourteenth on polygamy, bestiality, nor pedophilia. What we have is a New Age Theocracy. The Constitutional Republic has been destroyed. And it took a civil war to do it.

  6. Steve Sibson 2015.01.12

    "In other words, 51.83% of us don't get to go to the polls and deny a minority a fundamental Constitutional right, be it speech, assembly, due process, or marriage." Polygamy, pedophilia, .....

  7. larry kurtz 2015.01.12

    it's like letting a cat put the toothpaste back into a bag of genies.

  8. jerry 2015.01.12

    All of the sand contractors are busy filling orders for disgruntled haters of the Constitution. The orders come with instructions on how to pound it. Sibson and crew, start your engines.

  9. Troy 2015.01.12

    The stay as I understand it is the ruling doesn't change South Dakota law until after appeals are exhausted.

    It is roughly similar to this:

    I win a court case to own your house and evict you. You have a right to appeal the court case. Until your appeal rights exhausted, I can't get the sheriff to enforce the court order that I own the house (can't evict you or can't sell the house).

    Regarding the ruling, the essence of Judge Schreir's ruling is Loving determined that marriage is a "right" and she had determined the historical definition (between a man and woman) is irrelevant or that society has changed such that a new definition is applicable without input from the governed (either collectively as a nation or separately in each of the States).

    I think her effort to argue this isn't a slippery slope to making other marriage laws unconstitutional (e.g. polygamy, nepotism (didn't know that marriage between relatives was a form for nepotism), age restrictions) was interesting because it argued against her use of Loving.

    If she is so confident that Loving incorporated same-gender marriage, how can she be so confident it doesn't include polygamy or fathers marrying daughters (of age or under-age since he can give her permission)?

    Ultimately, here is my prediction how this ultimately gets resolved. The US Supreme Court is going to rule that many of the privileges that accompany marriage (visitation, transfer of assets, etc.) discriminate against same-gender couples and rule that States must grant these via a civil union option or eliminate them from their marriage laws.

    Sidenote: I thought her reference to some of the parties argument they are humiliated or embarrassed by the current law goofy. Nobody has a protection from humiliation or embarrassment. The law against rape has to be humiliating for rapists. I'm not minimizing these parties may feel humiliated but that isn't an argument for granting a right and she shouldn't have listed it as a rationale in her ruling.

    This does the following:

    1) Will protect religious objections from the re-definition of marriage and potential attempts of States and/or individuals to meddle in specific religious doctrines.

    2) Solves the polygamy etc. questions because there is already legal means for group sharing of assets. I could explain this but it would take a book but think how the law handles Majority rights, fiduciary obligation, and minority rights in business. Traditional marriage and even same-gender unions presume a communal sharing of assets where there is no majority or minority, etc.

    3) Is in my opinion, the solution that maintains civil tranquility. Yes, there are some who will oppose civil unions because of how they feel about homosexuality. Yes, there are some who will demand full equality between same-gender and opposite-gender unions. But, my guess is a broad majority (maybe 3-1) will agree everyone's rights are sufficiently satisfied.

    Footnote: I suspect some will say you can't limit "fundamental rights" but that isn't true. We limit free speech (yell fire in a theater, slander) or we limit defendants rights to confront their accuser if they are children or certain classes of victims.

  10. larry kurtz 2015.01.12

    Shorter Troy: all we are is ducks in the wind.

  11. Troy 2015.01.12

    P.S. Another analogy with regard to #2. I heard this once: Two can become one but three become a committee. The concept goes to suddenly there can become a minority requiring a different set of laws. I'm sure to get a lot of pushback. I'm just begging that there is some degree of agreement that more than two parties to anything is almost exponentially more complex. I'll give you another example: An end of life decision: If the two not on their death bed can't agree, what happens?

  12. larry kurtz 2015.01.12

    Even shorter Troy: the grapes were sour anyway.

  13. JeniW 2015.01.12

    Bill, what is the likelihood of a gay couple wanting to get married at a church where they are not welcomed, and maybe even hated?

    There are churches and pastors who will conduct a gay wedding,

  14. caheidelberger Post author | 2015.01.12

    Bill, I assume the the ruling and the stay have no impact on Pastor Hickey's daily routine. He (like my aspirant pastor wife!) can refuse to perform a same-sex wedding ceremony based on the tenets of his church...

    ...whoa, which makes me wonder: Pastor Steve, can you refuse to marry an interracial couple? (I by no means think you would; I'm just asking the constitutional and theological question.)

  15. caheidelberger Post author | 2015.01.12

    SCOTUSBlog writes that South Dakota's appeal, if tendered, would go to the Eighth Circuit, which has ruled on same-sex marriage in the current round of rulings. The Eighth Circuit did rule against same-sex marriage in a 2006 Nebraska case, but Judge Schreier said that ruling isn't binding because it "did not involve a direct test of the constitutionality of a same-sex marriage ban." The Eighth also has appeals on this issue from Arkansas and Missouri pending.

  16. Megan 2015.01.12

    When I was married 9 1/2 years ago, my fiance was, at the time, Catholic. I was Methodist. We compared wedding ceremonies in both of our home churches. We were told, though, that we wouldn't be able to marry in the Catholic church unless I jumped through a lot of religious hoops that I didn't care to jump through. So, if they could refuse me and my fiance (a straight, Christian couple) the ability to marry in their church, couldn't they refuse a gay couple? Is there some loophole or detail that I'm missing?

  17. Troy 2015.01.12

    Megan, Cory and JeniW,

    Even though I abhor the idea of a church denying to marry because the couple is inter-racial, if the church's tenets were against it, I'd be hesitant to impose the requirement on the church because the couple has sufficient alternatives without undue burden. I really hate defending this prerogative of religious liberty but once you cross it, where can you draw the line?

    It doesn't matter the odds of a gay couple wanting to get married in a particular church, there has been multiple lawsuits filed against churches and/or pastors exercising their right to not perform a same-gender marriage.

    Finally, as a Catholic, I'm pretty familiar with some of the hoops you didn't want to jump through. And, that is fine. You got married somewhere else and I hope you and your husband are happy with that choice. Nobody questions my right to not allow you to get married in my house. I find it curious people question the right of my Church to determine who they choose to marry.

  18. jerry 2015.01.12

    larry, Marty is pretty cavalier about spending taxpayer moolah, which is typical of his party here in South Dakota.

  19. Bill Fleming 2015.01.12

    "Pastor Steve, can you refuse to marry an interracial couple?" My thought exactly, Cory. I'm curious as to what the answer is. When the 1st Amendment conflicts with the 14th, which one trumps the other?

  20. larry kurtz 2015.01.12

    I hear you, jerry: Troy's marriage of church with state is lost on none of us.

  21. mike from iowa 2015.01.12

    Jackley must have a secret doorway to future funds account. Hopefully he and the state go down in flames on appeal,which prolly won't stop wingnuts from trying a new approach to discriminate against same sex couples.

  22. Happy Camper 2015.01.12

    Intelligent woman. Good post.

  23. Happy Camper 2015.01.12

    The bigger problem is finding Mr. Right.

  24. Troy 2015.01.12

    I did a quick google search. It appears that a church or a pastor can refuse to marry anyone for any reason they determine appropriate. Inter-racial, same-gender, divorced, won't adhere to doctrine of the religion, not members of the congregation, and even the music they want to play at the ceremony.

    There appears to be three rationales:

    1) Basic liberty of both the pastor and the church. Forcing and prohibiting are the two sides of the same coin and encroached on for only the most compelling reasons. Alternative options including going direct to the state removes almost any argument of compelling.

    2) Religious liberty. Religions are protected to hold views and doctrines regardless of whether those views are not held by the majority. In fact, because they are minority views, the Courts are more diligent in protecting them.

    3) Churchs/congregations aren't considered public accommodations like a local eatery. Instead, they are considered a "public assembly" (1st Amendment). Think the right of an AA group to kick out non-alcoholics or people who can't/won't abide by the rules.

  25. JeniW 2015.01.12

    Troy, filing a lawsuit is different from winning a lawsuit.

    Of all the lawsuits brought against churches and/or pastors, how many of the churches/pastors have lost, and the gay couple won?

    I think it is bizarre as to why people would want to get married, be baptists, and etc where they are not welcome and/or considered less than human.

  26. Chris S. 2015.01.12

    Bill, churches don't have to marry anyone that it's against their religious principles to marry. I can't walk into a Catholic church and demand that they marry me to a Buddhist, for instance. However, the ruling says that the state cannot discriminate against one group of people when it is issuing domestic partnerships (i.e., the state's version of marriage).

    Churches are still free to do whatever they want. A state official uniting two people in a legally binding partnership contract can no longer discriminate against people he or she doesn't like -- just like Loving vs. Virginia said that state officials couldn't refuse to marry mixed-race couples.

  27. Douglas Wiken 2015.01.12

    Let churches have their sacrament of marriage, but separate it from civil unions which the states can grant. This seems to remove all excuse for churning this issue which anyway should be irrelevant to anybody not so inclined.

  28. Chris S. 2015.01.12

    ...aaaand once again, the people railing against marriage equality trot out threadbare bogeymen like incest, pedophilia, bestiality, et al. What is it about the concept of consent that some people inherently can't grasp?

    It's not hard. If one party can't (or doesn't!) consent, it isn't a valid marriage.

  29. bearcreekbat 2015.01.12

    Judge Schreier made a great call! If the ruling can survive an appeal to the 8th Circuit, the majority of it's judges having been appointed by George W. Bush, which is doubtful, then the stay will be lifted. Indeed, I have to speculate that the only reason Judge Schreier issued a stay is because she is fully aware of the predilections of the Judges in the 8th who will review her decision.

    My guess is that the 8th will join the 6th and reverse Judge Schreier's decision. Then the SCOTUS will reverse the 8th and 6th Circuits and settle the issue with language that is consistent with Judge Schreier's ruling.

  30. larry kurtz 2015.01.12

    The easy American fix: compensate the officiant generously.

  31. oldguy 2015.01.12

    I really like it when people on a link can talk issues without attacking the person. Good job Madville people

  32. jerry 2015.01.12

    What about this? We may or may not have this going on in Pringle, South Dakota

    Where the hell is Marty?? He should be out there with swat teams loaded with military hardware to get to the bottom of this.

  33. Roger Cornelius 2015.01.12

    Last week federal court in Florida lifted not only their gay marriage ban but a few days later lifted her own stay that allowed gay couples to wed.
    Florida was the 36th state to either have a marriage ban thrown out or to approve gay marriage themselves. This should make South Dakota 37th in the country to approve gay marriage. There are several other states on the heels of approval.
    Certainly SCOTUS will have to consider that the majority of the states have legalized gay marriage in any decision they make.

  34. Roger Cornelius 2015.01.12

    About the church approval aspect of gay marriage, we need to take one step at a time.

  35. Steve Hickey 2015.01.12

    Right now, yes I can and have refused to marry people including straight couples. Like Cory mentioned, the interracial matter isn't a significant consideration for me. .in premarital counseling, we sort a variety of challenges out that face couples. And some, for them, cause them to part ways.

  36. Bill Fleming 2015.01.12

    Troy, Chris, thanks for the explanation. Makes sense. One other clarification, when a church pastor (or a ship captain... Whatever... ) conducts a marriage, is s/he acting as an agent for the state? i.e. When they say 'by the power vested in me... etc.' what power are they talking about?

  37. Deb Geelsdottir 2015.01.12

    Hickey and Troy are right. Pastors and churches can refuse to marry anyone for any reason. I have done so. I never met the couple, but when she phoned me, she said they wanted to be married in my church because it was such a beautiful setting. (I interned in the Cascade Mountains in Washington state.) She also asked me if the ceremony had to be "religious."

    Several churches are happy to provide same sex marriages: Evangelical Luthern Church in America, United Congregational Church, Metropolitan Community Church, Presbyterian Church, American Catholic Church, Episcopalian Church, United Catholic Church, and more that I can't think of right now.

    This is wonderful news for all South Dakotans! What will happen is that folks will realize that every adult having the right to marry the person they love will not cause any harm. In fact, if anyone notices any change, it will be positive. Just like other states. The fear mongers will be proven wrong - again. For the 37th time.

  38. Jeff Barth 2015.01.12

    Of course folks that oppose this could ban marriage altogether to stop it. But then.. only outlaws would have in-laws.

  39. Megan 2015.01.12

    Troy, we had a lovely wedding at my home church. I am not at all upset with the Catholic Church for not marrying us. I was just using my story to illustrate the point that churches have always had the ability to refuse to marry any couple.
    I am very pleased with the court's decision.

  40. Jeff Barth 2015.01.12

    I don't think that folks who are worried about their Church's rites should worry. The rights of same sex people have to do with the State, not the Church, Synagogue or Mosque.

  41. Bill Fleming 2015.01.12

    So Deb, when you do a marriage, aren't you acting as an agent for the state (as far as the legality of the marriage is concerened?)

    And if I inderstand you correctly, you can choose whether or not you wish to be that agent on a case by case basis as a matter of conscience or convenience or whatever, is that correct? So my question is, does everyone who performs marriages have that same prerogative?

    i.e. Is there anyone who could be compelled by the state to perform a marriage? (Any kind of marriage, not just SSM.)

  42. Chris S. 2015.01.12

    Bill, yes, as far as I know, the state tends to recognize marriages performed by clergy as being "equal" to marriages performed by civil officers (or the "justice of the peace," or whatever you want to call it). It seems similar to the way baptismal records are/were sometimes used to establish relative birth dates back in the olden days when there were more home births and public records were more spotty.

    As to the "by the power vested in me" line, I've been to many, many weddings, and I've never heard that said. I've only heard it on teevee weddings. It's not part of the Lutheran service, and I've never heard it at a Catholic wedding, or a Methodist one, or any other service. I think it's an instance of TV screenwriters taking the civil ceremony and grafting it onto their image of a religious ceremony.

  43. Troy 2015.01.12


    At a Catholic wedding, the Priest officiated the ceremony but the couple are who marries each other. The power rest with the couple and not the Priest.

  44. Deb Geelsdottir 2015.01.12

    Yes Bill, I am an agent of the state when I sign a marriage license. In SD and MN I must have the state's approval. In fact, in MN I had to go to the county offices and show proof of ordination! Then I was certified to sign a marriage license. In SD I didn't have to do anything. However, I was ordained in SD and was serving as a pastor in SD. I think those records are made available to the state.

    In MN certain elected officials, county and state, can officiate marriages without religious affiliation. Maybe city officials too, I'm not sure. I think SD and most states are the same.

    When I interned in Washington state I didn't have to do anything. In Washington there are no requirements. Any adult of legal age can sign a marriage license. The only thing they are concerned with is that the paperwork be completed correctly.

    MN is being sued by a non-ordained, non-religious person for the discriminatory law requiring ordination. It's pretty sure to be overturned.

  45. Bill Fleming 2015.01.12

    So as per Troy, the couple gets the marriage license and the priest, minister, ship captain or judge either signs it or refuses to sign it? Or am I hearing that if one is married in a church, they don't need to have a marriage license? What I'm trying to understand is who has the authority to decide whether a couple is legally married or not. Obviously it's not the couple, or we wouldn't be talking about this lawsuit, would we?

  46. leslie 2015.01.13


    bcb-good call:). u think jackley will appeal. how could we convince him not to? will the AG Ass'n (28 republican AGs) likely join in an existing or resultant appeal?

    sib-u meant new agers from the civil war?

  47. Nick Nemec 2015.01.13

    Thanks Deb, I was wondering about the question of who could officiate at a wedding. It seemed to me that requiring ordination (for those other than sworn officers of the state) would be an unconstitutional mixing of church and state. A friend once told me he signed up for ordination from some fake online church, it cost $10 and then he officiated at a friends wedding. It seemed like an unnecessary step. Who's to say I'm not the pastor of the "Church of Nick"? Shit, I'm the pope of the "Church of Nick". And it's OK to say "shit" or any other word in the "Church of Nick".

  48. leslie 2015.01.13

    hey that sounds like SD's bill penalizing teachers with attys fees, was it? we are just like TX!! am starting to think republican philosophy is antiquated and bogus.

  49. caheidelberger Post author | 2015.01.13

    Church of Nick, Blindman's Church of Bill... you guys know how to wreak theological havoc!

  50. caheidelberger Post author | 2015.01.13

    Good explanations above on pastoral authority. We have here a good example of how separation of church and state is good for churches. Pastors whose theology tells them that a marriage would violate their theology may refuse to marry those violators, and the state cannot order them to do so. However, the state remains free (and, Judge Schreier appears to be saying, obligated) to recognize those marriages with the same status granted to traditional couples.

  51. caheidelberger Post author | 2015.01.13

    Troy, while Judge Schreier and I both reject the slippery-slope argument, I will grant that the judge's reasoning may offer the state some more room for appeal than her other conclusions.

    However, Judge Schreier wasn't asked to rule on polygamy or incest. She notes that the Supreme Court has never extended constitutional protection to polygamous or incestuous acts but has extended constitutional protection to homosexual acts. She contends that polygamy and incest bans are far more limited limits than same-sex-marriage bans. A polygamy ban says, "You can get married, but only to one person." An incest ban says, "You can get married, just not to your kin." A same-sex-marriage ban says to an entire class of citizens, "You can't get married."

    People are born homosexual. Is anyone born a polygamist, who would find monogamy not just boring but innately unappealing? (I'm struggling for the right terms here—help!) Is anyone born an innate incestuist, feeling eros only for blood relatives? Are polygamists and incestuists definable as a class in the same way as homosexuals?

  52. Nick Nemec 2015.01.13

    I think you might have hit the nail on the head Cory. Homosexuals are born homosexual, it's who they are, just as heterosexuals like you and I were born heterosexual and never made any choice. People aren't born polygamists or incestuists (is that a word?).

  53. Steve Sibson 2015.01.13

    "Yes Bill, I am an agent of the state when I sign a marriage license."

    Debs, thanks for confirming that another principle of the original Constitution has been destroyed...separation of church and state.

  54. Steve Sibson 2015.01.13

    "Troy, while Judge Schreier and I both reject the slippery-slope argument"

    It is not a slippery slope argument. It is demonstrating the hypocrisy of the court, and that the due process argument is a lie.

  55. Steve Sibson 2015.01.13

    "Homosexuals are born homosexual, it's who they are, just as heterosexuals like you and I were born heterosexual and never made any choice."

    And Nick, you can't help yourself if you have an affair with another women? So it is OK? I is not a sin? You were born that way, ( sinful). Affairs and the resulting destruction of the family is not a detriment to the society?

  56. Steve Sibson 2015.01.13

    Cory, are pedophiles born that way?

  57. larry kurtz 2015.01.13

    Officiants as agents of the state: how is that constitutional?

  58. caheidelberger Post author | 2015.01.13

    Don't know, Steve. But pedophiles are engaging in a nonconsensual relationship that violates boundaries of power and trust. A pedophile raping a child is not seeking a legal union and is not the subject of this case.

  59. caheidelberger Post author | 2015.01.13

    Nick, even if it isn't a word, I'll keep using it until someone can offer a legitimate, attested alternative. :-)

  60. caheidelberger Post author | 2015.01.13

    On "born that way"... dare I suggest that every man is born with a polygamist urge? Even the virtuous Jimmy Carter felt lust in his heart with ladies other than Rosalynn. But the idea of "marriage" in the culture isn't about lust; it's about lifelong commitment.

  61. Loren 2015.01.13

    Wouldn't it be interesting if we could follow Marty and "let the people decide"? If we did, SD voters would be free to send the natives to the rez, the gays to CA, the latinos to Mexico (or at least TX), the black folks back to the south, the Swedes back to Minnesota, ... What a grand place we would have, here in our little Garden. You go, Marty! (Sarcasm mode disengaged)

  62. Bill Fleming 2015.01.13

    Interesting stuff. Digging around a little (mostly in Wikipedia) I see that there are only 9 states that still recognize 'common law' marriages, and that the state of SD eliminated them in 1959. Perhaps that's what Troy was referencing when he asserts that the 'couples are who marries each other.' Indeed, that used to be the case. But these days, not so much.

    Curiously though, I also found mention of the 'full faith and credit' clause in the Constitution that says that laws in one state have to be upheld in the others, and that this argument, while being largely ignored in the past, is being invoked more and more in recent court cases having to do with SSM. T

    he upshot seems to be that more and more, the institutional bond of marriage seems to be moving more and more toward a state vs federal issue and less and less a matter between the couples promise to one another as witnessed and affirmed by their immediate family, community and religious institutions. Sure sounds like separation of church and state to me. And in fact, separation of people and their state, doesn't it?

  63. Steve Sibson 2015.01.13

    "But the idea of "marriage" in the culture isn't about lust; it's about lifelong commitment."

    I'm committed to my dog Cory. But she is getting older and the vet bills are piling up. Could use some Medicaid expansion here.

  64. larry kurtz 2015.01.13

    Your dog isn't of legal age to marry in South Dakota, Sibson.

  65. Steve Sibson 2015.01.13

    "But pedophiles are engaging in a nonconsensual relationship that violates boundaries of power and trust."

    Twelve year olds can have sex with other twelve year olds. Right Cory. Isn't that what Planned Parenthood promotes in sex education classes in our elementary schools?

  66. Steve Sibson 2015.01.13

    "A pedophile raping a child is not seeking a legal union and is not the subject of this case."

    A sex education teacher is not seeking a legal union with their students as they push "if it feels good do it". Hypocrites!

  67. Steve Sibson 2015.01.13

    "Your dog isn't of legal age to marry in South Dakota, Sibson."

    Age discrimination.

  68. larry kurtz 2015.01.13

    -2 in Mitchell: your life must be a living Hell, Steve.

  69. larry kurtz 2015.01.13

    I'm going to call Kathy Sibson to let her know she should expect a divorce so her husband can marry his dog.

  70. JeniW 2015.01.13

    Oh, my laugh of the day so early in the morning.

    Steve S., I hope that your comment is not a reflection of your wishful thinking from your time at elementary school.

    If you are using your dog as a sex object, I hope someone calls the Animal Control, and they charge you with animal abuse.

    If you cannot afford to provide medical care for your dog, please surrender him/her to an animal shelter.

  71. Steve Sibson 2015.01.13

    "Organizations like International Planned Parenthood (IPPF) and IPAS, staunch advocates for the sexual and reproductive rights of minors internationally and at the United Nations, have already issued official reports to the conference bureau supportive of rights language including contraception and abortion. They are also using the conference as an opportunity to attack parental involvement in the sexual health of their children."

    So if children can't give consent, then whoever caused their need for an abortion should be a rapist Cory? Or is the leftists being hypocrites? Or are the leftists trying to satisfy the majority, even if it violates "equal rights" to marriage? Since the propagandists have successfully changed the minds of the majority in regard to gays, they can now support gay marriage? The arguments used to support this decision do not hold water.

  72. Steve Sibson 2015.01.13

    "If you are using your dog as a sex object"

    Its not about lust, it is about life-long commitment. That is Cory's argument not mine, so go after him Jeni.

    And if you can't pay for the healthcare of your children, then turn them over to the state? You support that Jeni? If this issue is based only on the idea of love, many love their dogs as much as they love children. Any of you felt extremely bad when your dog died? I have. If the only necessity to the right to marry is love, then why not include dogs. Because dogs can't talk, they can't give consent? More man-made rules.

  73. larry kurtz 2015.01.13

    Every impregnated 14-year-old rape victim in Pringle should be forced to carry the foetus to term: Sibby is channelling Sally Hemings.

  74. Steve Sibson 2015.01.13

    "I'm going to call Kathy Sibson to let her know she should expect a divorce so her husband can marry his dog."

    Larry, you are violating the Fourteenth Amendment rights of polygamists.

  75. Jenny 2015.01.13

    Don't ever come to MN, Sibster. There are many, many beautiful, loving gay couples here. It makes me feel good inside whenever I see gay couples that have just gotten married and starting out. The happiness in their faces says it all. Go MN -thank you again for voting in equality!

  76. Troy 2015.01.13


    Her argument was marriage is a right. As you said above "period." That means just as the state can't discriminate on speech that it allows, it must not discriminate on marriage that it allows. Apply her same gender logic against those other forms of "marriage and her only logic defense is those aren't before the court. Not very comforting to me and it shouldn't be to you if you expect this to prevail.

  77. Steve Sibson 2015.01.13

    Fleming, it starts out with:

    "South Dakota statutes define marriage as a personal relation, between a man and a woman,..."

    So you are saying Schreier should be disbarred?

  78. Bill Fleming 2015.01.13

    Sibby, you're either going to have to take your issue of dog marriage to the state legislature or go to court and sue. Good luck man. If you're successful, I'll chip in for the wedding cake. What do you think? Carrot cake. Or Alpo? Frosting or gravy? Either way, we'll do you a nice deco job. No charge.

  79. Steve Sibson 2015.01.13

    Jenny are there any happy people in Minnesota walking their lovely dogs?

  80. Jenny 2015.01.13

    If and when I see an anti-gay bill floating around Pierre, I WILL immediately start my boycott SD petition again. Remember that, SD GOP. Minnesotans love your Black Hills, but they can't stand your politics.

  81. JeniW 2015.01.13

    I mention this once again from another thread some months ago:

    Marriage is a legal contract between two consenting adults. Hopefully, they love each other, but to get to the bottom line, it is about entering into a legal contract with all its rights and responsibilities that go with it.

    People cannot marry their pets because pets cannot enter into a legal contract. That is indeed a man made law.

    Animals are considered property; there are no resources to provide medical care for animals, unless it is from the vet. There are resources to help with children's medical/health/dental/psychological and etc needs.

  82. Steve Sibson 2015.01.13

    Cory, perhaps you should put up a most detailing all the restrictions you theocrats believe should be applied to marriage. Here is a start:

    Have to be human.
    Can't be under age.
    Only to one other person.
    Can't be within families.

  83. Bill Fleming 2015.01.13

    Keep reading Sibby, down to the section where it says 'prohibited marriages?'

  84. Steve Sibson 2015.01.13

    Fleming, I will not as I don't agree that I can marry my dog, a man, a second women, or a kid. And so I am against "marriage equality"? Then so are everyone on this thread.

  85. Jenny 2015.01.13

    Sibby, you really need to get off your bestiality thinking. You really just sound like a freak.

  86. Bill Fleming 2015.01.13

    I think you are against equality, period, Sibby. You are a white Biblical Christian supremacist. Anyone who googles you can see that in a matter of minutes.

  87. mike from iowa 2015.01.13

    Wingnuts used to say Gays recruited new members-kinda like the military. Then it became a lifestyle choice. Now they are a threat to straight marriages. Next week Gays will be accused of causing global warming that wingnuts don't believe in.

    Heads will explode because of this ruling and if that is what it takes to expand a wingnut's mind,I'm all for it.

  88. mike from iowa 2015.01.13

    Sibby,it would be better if you and your dog broke the news to the little lady about your love affair. You could pull a Ted Nugent and be appointed the dog's legal guardian and then you can sign a consent agreement for the dog to marry you. That should pass legal muster. Which one of you agrees to be the woman or man?

  89. jerry 2015.01.13

    I think that we can now get a picture of why the Catholic church kicked Sibson out...his bestiality Santorum thing is way to much.

  90. larry kurtz 2015.01.13

    605-996-2970 is Kathy Sibson's phone number.

  91. Bill Fleming 2015.01.13

    Sibby is kind of like a virtual suicide bomber who walks in and blows everything up, spilling his goop all over everybody in sight... a blog kamikaze blog terrorist of sorts, the main difference being, because he's doing it digitally instead of analog, he gets to violate us over, and over and over. Brutal.

  92. Steve Sibson 2015.01.13

    And now that simple logic shows you, and Schreier, are against "marriage equality", this thread will now turn ugly and go on the attack. It has happened time and time again.

  93. Bill Fleming 2015.01.13

    It will happen every time you compare same sex marriage to bestiality, Sibby. If you don't want ugly, don't be ugly.

  94. Troy 2015.01.13

    Bestiality is a stupid distraction. Animals can't give consent and thus can't enter into a contract.

  95. larry kurtz 2015.01.13

    and women in South Dakota are forbidden to exercise their rights to a D & C for three days because religion.

  96. TJ 2015.01.13

    How much is Marty willing to spend under 77 U.S. 619 (1986)
    Here is what other states are paying or have been asked to pay with tax payers money:
    Alaska $257,938; Arkansas $16,411; Idaho $401,663; Kentucky $70,778; Missouri $31,875; Ohio $210,929; Oklahoma $370,769; Oregon $262,398; South Carolina $152,709; Utah $95,000; Virginia $60,000; West Virginia $350,256; Wisconsin $1,243,804.
    The average is $271,117.69.
    Money that could be used to fix road or pay teachers.

  97. Bill Fleming 2015.01.13

    Troy, for all non-religious purposes, there would be no difference at all between the 'civil union' you propose and 'marriage' other than the semantic distinction, would there?

  98. Troy 2015.01.13

    Bill, qualified by not being a lawyer, I don't think so. But, just to be clear, I don't think semantics is unimportant. Words retaining their meaning is fundamental to the rule of law.

    I'll give you an example. Right now, many of what I believe are privacy invasions with regard to eavesdropping on cell conversations is "semantics" regarding what is a "search" and/or what is said "in public."

    When the court can reinterpret what marriage is (without public input via their elected representatives), they can also reinterpret what is a search. Or public assembly vs. public accommodation.

  99. Troy 2015.01.13

    Additional comment (hit send to early)

    And, while one side or other might endorse a particular court reinterpretation of what words mean, we should all be very concerned about the precedent because it can cut both ways.

    "First they came for the Socialists, and I did not speak out— Because I was not a Socialist. Then they came for the Trade Unionists, and I did not speak out— Because I was not a Trade Unionist. Then they came for the Jews, and I did not speak out— Because I was not a Jew. Then they came for me—and there was no one left to speak for me." (Martin Niemoller)

  100. Steve Sibson 2015.01.13

    "It will happen every time you compare same sex marriage to bestiality"

    Again, you propagandist don't want the idea of marrying a dog is because of love not sex. That argument is being used to support same sex marriage Bill in order to stop talking about sexual immorality. Biblical Christians have a consistent argument for marriage equality because it is based on sexual morality. The gay agenda does not have a consistent argument. It violates equality.

    Troy, don't get sucked into Fleming's methods of deception.

  101. Bill Fleming 2015.01.13

    Troy already dismissed your dog argument as being a stupid distraction, Sibby. I can't improve on that.

  102. larry kurtz 2015.01.13

    Sex is no longer an option for Sibby.

  103. Jenny 2015.01.13

    I don't think dogs can go to heaven anyway, can they Sib? And doesn't it say in the old Testament that you can't have sex with an animal? All it says about homsexuality is that it is an abomination.

  104. Jenny 2015.01.13

    Troy, yes we know your bright, but let's cut to the chase. What exactly is you stance on gay marriage? Do you believe SD should go the way of MN and change it in the SD constitution?

  105. Jenny 2015.01.13

    Actually, it's you're bright (not your).

  106. bearcreekbat 2015.01.13

    Assume for the sake of argument that the legal framework supporting SSM also applies to adult incestuous couples and polygamists.

    As to "incest" what is the harm if two related people choose to marry? While it is commonly believed (I don't know if it is a fact) that if they procreate their children will have genetic problems, we don't prohibit unrelated adults with diagnosed genetic problems to marry. Indeed, just as many adults with genetic issues decide not to have children due to the risk, many related couples also might decide not to have children. And just as an unrelated married couple might choose to carry a pregnancy to term even though they learn their fetus has Downs Syndrome or some other difficulty, why shouldn't a related couple be permitted to give birth to a child with special needs?

    As for polygamy, the law already allows groups of people to live together and engage in multiple sexual relationships. How would society be harmed by allowing such groups to declare their love for each other through marriage, which in turn would create new protections and support obligations on all the participants?

    In other words, people who use the slippery slope argument to fear SSM, seem to be making another argument premised on discriminating against loving adults.

  107. Troy 2015.01.13


    I think there are sound Constitutional, societal, and moral reasons why traditional marriage should be retained (and even protected). And, for the last ten years, I've deferred to the argument being framed by what I believe are weak and ultimately losing arguments. The current status of the debate is confirming that those arguments were losers and I'm not going to defer any longer.

    And, at the same time, there are government privileges afforded to opposite sex couples that I find the only reason to deny them is the personal abhorrence to homosexuality. That too is something I can't abide under our Constitution, regardless of how I feel about homosexuality (pro, con or indifferent). Our Constitution is designed to protect the liberty of the minority to live their lives as they see fit and the only legitimate governmental limits are when the actions impede on others.

    What is the compelling societal reason to impede private behavior, how two consulting adults choose to organize their home, and provide for the distribution of their assets?

    I do think there is still to be some debate on whether or not certain privileges (i.e. tax subsidies and adoption*) are to remain exclusive to traditional married couples but the raising of the issues such as bestiality or abhorrence to homosexuality to be a counter-productive distraction from the matter at hand.

    I want to touch on adoption in anticipation of a hue and cry presumption of my views that are not true. I have no doubt that two same-gender parents can provide a loving good home to children and there is no additional risk to the child being exposed to sexual deviancy or abuse not possible in a opposite-gender home.

    However, I believe strongly that the genius of the masculine and genius of the feminine is together which is best for a child. I saw it just the other day in a business setting where the female giving a purely female perspective enhanced the business issue resolution. A room of just men would have made an inferior decision, although all the men's motive was to make the best business decision. So it is in a home.

    To me, it is just statistics. A child that goes through adoption is first a ward of the state. They aren't social experiments or instruments for achieving "equality." The only consideration is placing them where they have the best chance of getting the full complement of two parents with distinct gifts and skills.

    Again, despite having no doubt that a same-gender family can love a child as much and sincerely have the best interests of the child as an opposite gender family, the odds are greater that a child in an opposite-gender home will get a full complement of skills and perspective. So, unless there is a shortage of qualified and quality opposite-gender adoption couples, for improved statistical odds for the good of the child, I have no choice but support retention of a preference for opposite-gender adoption applicants. And, that view has nothing to do with how I feel about homosexuality (pro, con or indifferent).

    FYI: If a same-gender couple desires to build a family, there are options other than adopting of an orphan or child otherwise placed in the care of the state.

  108. Bill Fleming 2015.01.13

    Troy, to be sure, neither of us are lawyers, but both of us hopefully are able to understand the intent and — with concentration — the language of the law. So with that in mind, I'd like to discuss your prediction here:

    "The US Supreme Court is going to rule that many of the privileges that accompany marriage (visitation, transfer of assets, etc.) discriminate against same-gender couples and rule that States must grant these via a civil union option or eliminate them from their marriage laws."

    1. Do you have a preference as to which way South Dakota should go here? Should SD grant those privileges to "same-gender" couples "via a civil union option or eliminate them from their marriage laws."?

    2. Presuming you would prefer the former, and presuming those "privileges" are indeed privileges (as opposed to fundamental rights) and since we're not lawyers, are you taking the position that you would support such civil unions provided those "same gender couples" don't use the word "married" to describe their legal status?

    3. If so, how do you square that bit of language control with the couple's 1st Amendment right to use language as they please (since clearly the use of language is a "right" even if one argues that marriage is not)?

  109. larry kurtz 2015.01.13

    Troy's evolution is fun to watch.

  110. Bill Fleming 2015.01.13

    I think Troy is doing a remarkably good job of sharing what a lot of American citizens have been thinking and rethinking in the past decade, and I salute him for it. Thank you sincerely, Mr. Jones.

  111. larry kurtz 2015.01.13

    Your good cop role is just so warm and fuzzy, Mr. Fleming.

  112. Troy 2015.01.13

    1) Mixed. My libertarian perspective was always uncomfortable with some of the privileges (e.g. tax benefits) but not others (employer provided insurance).

    2) Yes.

    3) I don't care if two people (same-gender or opposite) say they are married even if it is a private declaration between the two without any church or state involved. But, NOBODY has a right to change (legal or otherwise) definitions to fit their perspective and expect the law or others to honor it. It's "banana republicanism" and acceding to mob rule.

    Every society for thousands of years understood marriage was opposite gender. If a same sex wants to have a close facsimile of marriage (as best as two people who aren't opposite gender can have), that is their choice. But, honest use of the word "marriage" isn't served by saying a close facsimile is the same.

    Sidenote and said with total sincerity: When you consider the mockery and mess heterosexuals have made of marriage, it is crazy they would want to use the same word to describe their relationship.

    Larry, I haven't recently evolved. I came to this position over 30 years ago. My silence was a misplaced deference to the consensus of those who assumed the mantle of preserving traditional marriage.

  113. leslie 2015.01.13

    sib-thx for the humor, thx 4 confirming the notion to continue for the most part to ignore your posts, sad u have to commandeer the thread, glad u r against "incestors", "fertile" ground for you on this thread though....

    i think pedophilia is a recognized, diagnosed disorder where one's 1st experience "chains" them to that type of deviant behavior. can't remember the exact terminology and assume it may be in DSM V. represented clients charged with these crimes, in the distant past.

  114. mike from iowa 2015.01.13

    bcb-permitting a couple to give birth to a child with special needs is light years away from wingnuts demands that that child be born regardless of the parent's desires.

  115. larry kurtz 2015.01.13

    Troy: your cluelessness about American Indian history is murky at best.

  116. larry kurtz 2015.01.13

    Today's oxymoron: traditional marriage.

  117. Jenny 2015.01.13

    I have known very, and I mean, very loving gay male couples with children. Their children are as happy as can be and the family I know is a joy to watch at the park with their kids laughing and full of love for their daddies playing and rousing with them. That is love, South Dakota! Get over yourselves! These children are being raised with love and security!

  118. larry kurtz 2015.01.13

    Marty has just been interviewed on Bill Janklow's idea of public radio: priggish, judgmental and misanthropic as ever.

  119. mike from iowa 2015.01.13

    Deb G-no offense,but would you be willing to officiate Sibby's latest attempt at matrimony,if the dog in question consents?

  120. leslie 2015.01.13

    troy-thats what courts do, interpret words applying precedent. (except for SCOTUS which consists of 5 unelected politicians wearing black robes. i think ronnie/clarence exemplify that. )

    sippopotamus-funny that you say "sucked-in" of others when that is your m.o. your use of gotcha logic is so fallacious.

    feeding trolls begats trolls and i am sorry. sad i got sucked in by ole' bill f.

  121. Roger Cornelius 2015.01.13

    If there is a Church of Bill and a Church of Nick, Sibson must be the bishop of the Church of Hate and Discontent.

    Sibby is coveting his puppy, aren't there biblical laws about that?

  122. leslie 2015.01.13

    troy, I think govt co-opted your tradl word marriage as previously stated by others here, as now a LEGAL, CONTRACTUAL RELATIONSHIP exists SO THERE WON'T HAVE TO BE GOVERNMENT FOR SPOUSal support CAUSE THE SPOUSE IS FOREVERAFTER oBLIGATED FOR IT. just got lazy to click caps lock off.

  123. Steve Sibson 2015.01.13

    Troy, what you are missing is what everyone else on this thread is missing (except perhaps BCB) and that is giving rights to gays, but not other minorities, thus violating the very standard that is being used by the gay agenda..."Marriage equality" based on the Fourteenth Amendment.

    I have yet to hear a consistent and logical standard upon which gay marriage can be allowed, but not open marriage up to everybody and everything on the face of the map. There seems to be a theocracy based on postmodern thought that fosters the false premise that truth can be whatever you want it to be. So what is good for the gays don't have to be granted to pedophiles, polygamists, and/or family members who just want to get money out of the government to pay for what their loved ones think they are entitled to...including their pets. Instead of marriage being based on Biblical standards that includes sexual morality, we are now going down the same chaotic path we have been on for decades. And it always ends up with government stepping in to fix the problems created by the chaos. And this is being engineered by the ruling elites (including the crony capitalists) that enjoy ruling over us through the government.

    Result: the Constitution is destroyed, the family is destroyed, and freedoms are destroyed. Welcome to the socialistic totalitarian New World Order. It is not coming, it is here, and been so for some time.

    And these people need fools like Fleming to deceive the masses. Bill, you are doing a wonderful job at being a fool.

  124. Bill Fleming 2015.01.13

    Well of course the word hasn't been used for "thousands of years," Troy. Nor has its meaning always been nearly as limited and specific as you would perhaps like to maintain, but nice try. :-)

    A quick look at the link below will demonstrate there are a multitude of ways the "institution" as well as the "word" has been understood throughout history and in various cultures.

    Perhaps a better way to look at it might be that as societies change, so too do the meanings of their words.

  125. Happy Camper 2015.01.13

    There is a history of same-sex unions/marriage and marriage in forms other than one man/one woman.

    Early marriage "was believed to be ‘group marriage’. The union was basically between groups of men and women, and there exists shared sexual relations. The group marriage allowed polyandry, and this existed in Ceylon, India, and Tibet many years ago."

  126. Bill Fleming 2015.01.13

    Sibby, suffice it to say that I'm not the one who makes the argument of wanting to marry my dog, my daughter, or multiple people at once. Those are your arguments, and I've stipulated that if those are truly concerns of yours, you need to take it up with the legislature and the courts.

    Hell, I've even offered to provide you with a wedding cake at no charge if you are somehow successful in your campaign.

    So maybe you're right.

    Maybe giving you a free wedding cake is does make me a fool.

    How about if I charge you for it instead?

    Or how about you buy it from some other person who loves dogs, incest and polygamy as much as you seem to?

    Any of those options are fine with me.

    I'm just trying to get along over here.

  127. Troy 2015.01.13


    In America, there is little legal restrictions on how adults form a household. Most of the restrictions are related to safety (e.g. quantity of people in so many square feet or used for crimes like pedophilia) because forming a household is an inferred right (which can be limited when it impedes on other rights).

    Mostly, the essential argument is about granting privileges (not rights since current law doesn't prevent any two (or more) adults forming a household) associated with the chosen household and whether denial or granting of these privileges is Constitutionally permitted.

    But, I do agree with your point that this opens up "marriage" to new definitions according to the whim of future judges/courts (as I discussed on the inherent contradictions in Schrieir's ruling with regard to saying Loving says "marriage is a right. period," presumes/assumes that Loving contemplated a definition other than used at the time, and doesn't preclude a new definition that could/should allow incestuous or polygamist marriages). I think she has used faulty logic and it is easy to see.

    And, I agree that allowing words to be redefined opens us up to "banana republicanism" and destroys the rule of law.

    Bill, for at least two thousand years and throughout history since the inception of our system of the rule of law (vs. rule of monarchic fiat), marriage has meant legal and social household commitment between a man and woman. And, most if not all cultures have either a close if not identical institution. To refer to prior cultures also must incorporate these were times where wives and children were considered and treated legally as little more than chattel. If you want to refer to this as a justification, you must logically be referring to some justification for slavery/chattelization of women and children, which I know you abhor. You just can't have your cake and eat it too.

  128. Bill Fleming 2015.01.13

    I'll stand by my assertion that the definition of marriage has changed over time, Troy. My opinion is, that it has changed for the better, and continues to do so.

    And you don't have to look very far back in US history, even in your and my lifetime, to see that I am correct about that. The social status of our wives and daughters today is, in my opinion, far superior to that of my grandmother's when she was a teenager, and her mother's plight was even more along the lines of the "chattel" you reference.

  129. Troy 2015.01.13


    Those were not "changes" in the definition but the practical application of cultural norms in the household. A distinction worth making.

    But, even so, those aren't a change in a "fundamental"- A relationship between a man and a woman.

  130. Bill Fleming 2015.01.13

    Agreed, Troy. What's changing now are the definitions of what "a man and a woman" means. We are learning that the lines between the two sexes aren't as clear cut as we once thought either biologically or environmentally. And neither, by extension are the roles individuals play in the family unit. The whole "gender" idea is being called into question... has been for several decades now. Probably about the time your libertarian instincts kicked in and you decided to take a look at things in light of individual liberty and social justice.

  131. larry kurtz 2015.01.13

    More historically a man and several women but a woman with several husbands was seen as something other than married. The US was founded by radical members of religious sects that defined marriage family by family or community to community: that the word means any one thing is simply neanderthal.

  132. Bill Fleming 2015.01.13

    Larry, what do you expect, man? We're talking to "strict constructionists" here. Just kidding... sorta... :-)

  133. larry kurtz 2015.01.13

    Oh, Bill: that the state and some select sects wreck sex or marriage perplexes.

  134. Steve Sibson 2015.01.13

    "I've stipulated that if those are truly concerns of yours, you need to take it up with the legislature and the courts."

    Those should concerns are for those who promote "marriage equality" not me. You continue to play the part of a fool.

  135. larry kurtz 2015.01.13

    speaking of neanderthal....

  136. Jenny 2015.01.13

    Was it okay to have three hundred wives like some of those old farts in the bible?

  137. Steve Sibson 2015.01.13

    "My opinion is, that it has changed for the better, and continues to do so."

    No Bill, Troy is right, you want to have you cake and eat it too. You want marriage to be redefined, which fits going back to the ancients. How many concubines did Solomon have? How many wives gave their maid servants to their husbands in order to have children? Troy is right, the days were marriage was whatever certain rulers wanted it to be was not a place where feminists of today would not have a good time.

  138. Steve Sibson 2015.01.13

    "Was it okay to have three hundred wives like some of those old farts in the bible?"

    As long as it was all about "Love" Shreier would say fine, if she wants to have a consistent argument.

  139. leslie 2015.01.13

    home run flemming! 14:29

  140. Happy Camper 2015.01.13

    "We are learning that the lines between the two sexes aren't as clear cut as we once thought either biologically or environmentally."

    Not everyone wants to go there. Many prefer defined lines rather than ambiguity, but people are sexual before exerting a preference. A friend's relationships have often been with married or "straight" men who aren't closet case gays. Labels force black/white where things are blurry.

    Not wanting to recognize these relationships is often about not wanting to accept the true nature of the human animal without all the made up stuff we try and bring in to it.

  141. leslie 2015.01.13

    troy-he may mean evolution pre- and post- 11:53. i was gonna say like the cat clutching the tree, claw marks descending!

  142. Daniel Buresh 2015.01.13

    How about we remove marriage entirely, stop allowing the gov't to discriminate based on marital status, and allow every citizen the ability to extend their rights/benefits to any one person they choose? I can't stand when two people working the same job get different amounts in their benefits simply because they are married. How is that not wrong?

  143. Troy 2015.01.13


    Not only do I think it right but I think it wholly justified: you don't have to be in business very long to realize that in general your most stable and long-term employees are those who are married and with kids. Giving married people general differential benefits is just a form of compensation rewarding them for their general greater value.

  144. caheidelberger Post author | 2015.01.13

    Daniel, I'm o.k. with getting the government out of the marriage business entirely. It would make some problems go poof.

    Troy does make clear the business case for offering spousal benefits. But now I'm worried that Troy is going to break out an actuarial table showing that same-sex couples are 4.2% less likely to stick with a given job and thus justify giving same-sex spouses 4.2% less benefits.

    Just to check, Troy: it's constitutional for an employer to offer different compensation to different employees in the form of, say, health benefits for employee, spouse, and children, right? Would it be constitutional for an employer to pay every employee, say, $20 an hour, then add $2 per hour for those employees with spouses, then another $2 an hour for each child that a given employee has?

  145. leslie 2015.01.13

    how does one morman's separate and slower evolving definition of marriage play here? that was not very long ago.

    it also may have been that morman patriarchal MAN'S unwillingness to take horses in payment for his old, broken cow/ox that a miniconju hunter harvested to feed his people waiting for always late treaty provisions.

    as a result of his unreasonable refusal (likely based on religious dogma) the calvary came in, took a shot, and lost all 25 troops. for this "massacre" our government organized a retributive attack a year later on a sleeping village at blue water Neb., surrounding them with 600 infantry, calvary and artillery, chased them 5 miles and killed them, women and children included.

    the army then named the spiritual heart of their paha sapa after general "bear", "woman killer" harney. the names should tell you how they feel to this day over this shaming affront.

    morman "marriage" obviously meant something different, as did his caring to avert a 37 year war taking Indian land obstructing the mines, the railroads, the establishment of ft. pierre, ft. randall, and installation one of those participating military officers as post suttler & then the 1st territorial governor, SD statehood, and finally wiken's farm in winner. The blue water fight also opened Nebraska to statehood.

  146. Bill Fleming 2015.01.13

    Happy Camper, yes, maybe the best way to avoid stereotyping others is to first avoid stereotyping ourselves and those closest to us. No one should be made to feel bad about who they are (except maybe Sibby ;-)

  147. Troy 2015.01.13


    I think it would be if there was a justifiable business reason. That said, there are practical political (political in the workplace with regard to employee sense of fairness) that might preclude it.

    At the end of the day, an employer is interested in maximizing employee motivation and performance, retention of best employees and not playing favorites (which hinders performance and profits).

  148. bearcreekbat 2015.01.13

    Just to clarify, my comments about adult incest and polygamy were not intended to support or agree with any of Sibby's comments or his arguments. I believe that by extending the right to marry to all consenting adults our society would actually improve.

    By treating related adults or adult groups as having less of right to marry than others we devalue their humanity. When we devalue our friends and neighbors, we devalue ourselves and weaken our social bonds.

  149. JeniW 2015.01.13

    It is all about people being able to enter into a legal contract. Nothing more, nothing less. That is what the "equality" factor is. That is allowing same gender couples who give consent the same right to into a legal contract as opposite gender are able to.

  150. Jenny 2015.01.13

    I don't necessarily think that the employees that are married and with children are the ones that are the most valuable and stable, as Troy says. I know a lot of totally dysfunctional married couples with children that have all the problems such as affairs, addictions, Then there are the single coworkers that are very dedicated to their jobs and have been their 30 years. A lot of people just choose to be single and not tied down and there is certainly nothing wrong with that. With all the problems with traditional marriage today, it would be fair to say that a lot of people should never have tied the knot in the first place.

  151. JeniW 2015.01.13

    I disagree with Troy as well. I think it is insulting to say that married people are more valuable than people who are not.

    I never married, and no children. That meant that I did not have to take time off work for sick/injured children, or take time off to meet with school staff, nor have to take time off because of sick/injured spouse. Plus did not need job job duties shifted onto someone else while on a six - eight weeks of maternity leave.

  152. Steve Sibson 2015.01.14

    "Would it be constitutional for an employer to pay every employee, say, $20 an hour, then add $2 per hour for those employees with spouses, then another $2 an hour for each child that a given employee has?"

    Yes it would. It would unconstitutional for governments to force employers to do it. Since we no longer follow the constitution, we have things like minimum wage. So can the government make businesses do it today...yes. The socialistic totalitarian New World Order is upon us.

  153. Craig 2015.01.14

    Steve, why do you continually ignore the key issue when you start talking about marrying your dog? This has been discussed numerous times, and each and every time you either flat out ignore the response, or you shift to another subject or try to pull people further down the rabbit hole. That is intellectual dishonesty Steve.

    So once again let it be stated that the primary reason you cannot marry your pet is because your pet isn't capable of offering consent. That isn't the only reason, but frankly since you can't get beyond the consent question none of the other reasons need be discussed.

    As Chris stated very early in this discussion "[w]hat is it about the concept of consent that some people inherently can't grasp?".

    Thus Steve, until you can prove your dog is capable of offering consent, your argument has ZERO validity. You are quite aware that your words are meant to provoke a response rather than add to the discussion in any meaningful way, and yet your continue to make the same invalid arguments time and time again. This isn't because you have an honest interest in engaging anyone or that you wish to convince others... it is merely because you enjoy playing your role as the blog troll. Once again your only real motivation is getting others to feed your ego and pay attention to you.

    The one and only valid point you may have is that marriage isn't about love. It never has been - and even though you are convinced your dog loves you or that it admires you it still isn't enough to support the argument that you should be able to force that dog into marriage that it cannot consent to.

    Troll on Steve. Troll on.

  154. Troy 2015.01.14


    In my haste to make a larger point, I shorthandedly used an example that gave an impression I didn't intend. I am sorry.

    Never do I intend to imply "value" diminishes the infinite value of each human, regardless of skills or other attributes of particular value to a business. Basic human dignity trumps everything in my mind.

    Yes there are exceptions to every genaeralization and respect for basic human dignity requires one to make sure generalizations don't lead to not recognizing the exceptions.

    My point was to mention "value" in a very narrow context. Married people as a class have lower turnover, stay with one company longer, and more committed to advancement. This means, in general, an employer gets more return on investment in training. This is why there is a business reason for employers to bear an addition cost for family insurance. With regard to wages, etc, marital status is an irrelevant consideration.

    I hope this clarification is helpful. And I sincerely apologize for not stating there are exceptions and the incremental difference isn't huge thus only contained to the small incremental cost the employer.

  155. larry kurtz 2015.01.14

    lol. Troy Loses Footing On Slippery Slope

  156. caheidelberger Post author | 2015.01.14

    Whew—you guys give me a lot to keep up with. Thank goodness you handle Sibby so I can skip his comments.

    Troy, you mentioned the contention that one-man-one-woman is the optimal parental combo. I see that's a central point in the Family Heritage Alliance's argument as well.

    Imagine a young lesbian couple raising children. Those two women will bring different experiences and personalities to their parenting. Are you saying, Troy, that if we could play God and seamlessly replace one of those women with a man, that his inherent masculinity by itself would improve the quality of parenting in that household?

    Along a similar line (and forgive me if this gets too abstract), let's say that gain in parenting quality from replacing one lesbian with a man would be q. (We won't even subtract d, the disappointment the remaining lesbian would feel having to shack up and collaborate with a man with whom she has no desire for romance or intimacy—and hey, replacement dude, it's nothing personal.) Are you willing to contend that q is greater than v, the variance in quality of parenting that the lesbian could find in unions with the full range of willing lesbian partners, from a self-centered, lazy, violent alcoholic lesbian to a woman of unimpeachable loyalty, patience, and integrity?

    Tell me if I'm wrong, lesbian readers, but I can imagine some lesbian thinking like Troy, just a little bit. (Please, take a moment, entertain that notion: a lesbian who thinks like Troy....) I can imagine two decent, loving lesbian parents thinking, "You know, we should have Troy and Cory over for dinner more often. Our kids could benefit from a little more exposure to men in social settings." I can imagine a lesbian who's thinking about starting a family thinking, "Gee, my girlfriend Linda would be a good co-mom, but maybe I would provide a 5% (is that x?) better home life for my kids if I broke with my nature and had a man around the house to be dad. So I'm going to hide my nature, marry a good man, and raise kids in a traditional, slightly superior family."

    Hmmm... as I say it, the imaging feels very stretched.

    I can imagine a lesbian thinking of raising a family and working through her list of lovers and friends whom she thinks would be good parents and recognizing that certain men she knows would be better parents than certain women she knows.

    But wait: do parents need to be lovers? Is physical intimacy, physical love, part of what makes parents good parents? Flip things on their head: suppose we had data that said same-sex couples actually provide more stability for kids that opposite-sex couples. It's 2001, I'm still single, and I think, "Gee, I'd like to have kids, and I really like this Erin girl... but I want to optimize stability for my children, so I'm going to marry Troy and live with him and our adopted offspring instead." Am I going to commit myself to living with a good friend instead of a person whom I feel a real desire to kiss and cuddle and share a bed with every night, just to gain some statistical margin on the quality of my childrearing?

    We may perceive that opposite-sex yin and yang may benefit kids, but (a) does it? and (b) does that yin and yang outweigh all the other axes of yin and yang by which we can measure relationships and marriage?

  157. Roger Cornelius 2015.01.14

    Here's what you do, when same-sex marriage becomes legal in South Dakota, you and your dog go down to your local courthouse and apply for a marriage license. When they deny the license based on the fact that your dog cannot give consent, you challenge the law all the way to the Supreme Court. This will be the ultimate test of your meanderings, let us know how it goes.

  158. Deb Geelsdottir 2015.01.14

    Troy's argument about married people in the workplace is very interesting. On the one hand, that sounds like a reason businesses encourage marriage for all - and they do.

    Second, it hasn't been long since businesses used marriage as a reason to disqualify women from working.

    I guess what goes around really does come around.

  159. caheidelberger Post author | 2015.01.14

    For all my fantasizing about what some Trojan lesbian might think, I may be forgetting square one: raising a child is less about who you are and more about what you do—i.e., how well you love your child. Find two people who can love each other and love their children, and does their biological equipment matter that much?

  160. caheidelberger Post author | 2015.01.14

    Good point, Deb! I wonder how much that disinclination to hire moms or moms-to-be still prevails?

  161. Roger Cornelius 2015.01.14

    One of the things I do when balancing prevailing social issues of the day is to examine the impact on laws and court ruling on myself, friends, family, and society.

    From what I have been able to determine from states that have legalized same-sex for a few years now, there does seem to be any real challenges or significant problems for the couples involved or for the state.

    Same-sex marriage does not affect me in anyway and I'm wagering for the readers here that it does not have a direct affect on them either. When we are out in public it is likely that we could never identify a same-sex married couple unless we know them.

    Given that homosexuality is been around since the beginning of time and that many societies have supported and tolerated same-sex relationships it is not likely that those unions will have any affect on society. The most obvious impact on same-sex relationships and unions comes from those that are homophobic and sit in their self-righteous judgments of how others choose to live their lives.

  162. Nick Nemec 2015.01.15

    I don't think I'm going out on a limb to claim that two loving and caring parents are better than one or zero loving parents, and better than one or two screwed up parents, or one loving parent and one screwed up parent or better than a life in the foster care system. Gender really isn't the best indicator of who will be a good parent.

Comments are closed.